SHAMSHAD NABI Vs. HAZI NASAR AHMAD AND OTHERS

JUDGEMENT

(1.) It has been submitted that the respondent No. 1 filed a suit against the respondent Nos.2 to 4 for partition of the properties mentioned in the suit. The applicant claims title of the property of Schedule No. 5 and prayed for impleadment in the partition suit on the assertion that suit property was purchased by the grand mother of the applicant namely Smt. Viliyati Begum by means of a registered sale-deed dated 13.9.1915, from Sayeed Ullah Khan and others. The English translation of the sale deed has been filed and marked as Annexure-2 to the affidavit because the said sale-deed was written in Urdu. It has been further contended that the plaintiff-respondent has not brought on record any documentary evidence to prove his title, though he asserted in the plaint that it was purchased by Sri Islam Ahmad i.e. the father of the plaintiff. It has been said that the suit was practically filed in the garb of partition suit but it is the collusive suit and the plaintiff arid defendants want to grab the property of the applicant by : getting the suit decreed in a collusive manner. That respondent No. 6 was not impleaded initially in the suit but on his prayer, he was impleaded as a party treating him to be a necessary party. Against that order, the plaintiff-respondent filed a revision before the Honourable High Court, which was dismissed and order impleading the respondent No. 6 was upheld by the Honourable Court. A copy of the said judgement and order of the Honourable Court has been marked as Annexure-3 to this affidavit.

(2.) The learned counsel for the applicant filed this revision against the order of rejection for prayer for impleadment. It has been submitted that to avoid multifarious of suits, the applicant's : prayer for impleadment ought to have been allowed. In this connection, the learned counsel for the applicant referred the following three decisions, as reported in AIR 1971 Orissa 44, 1990 (16) ALR 489 and AIR 1989 All 170. The learned counsel for the opp. parties strongly opposed the prayer and referred a decision, as reported in AIR 1997 SC 257 and contended that this prayer for impleadment has been rightly rejected and there was no miscarriage of justice because whatever may be the judgement or decree passed, in that partition suit, that would not be binding upon this applicant and in the suit for partition, the third party should not be allowed to be impleaded which will unnecessarily prolong the trial.

(3.) Duly considered the submissions of both. The judgement, referred to by the learned counsel for the respondents, relates to a case where the suit was decreed and that at the appellate stage the third party's predecessor wanted to be impleaded and it was held that if was allowed, then the judgment and decree ought to have been set aside and the suit ought to have been sent back on remand i.e. by allowing such application of amendment de-novo trial of the suit was to be forced. As such the Honourable Supreme Court rejected that prayer for impleadment, but in the instant case, the suit is still pending in the trial court and the parties will not be at sufferance resulting de novo trial and on the contrary' the multiplicity of the suit could be easily avoided.