FATEH CHAND KHANNA Vs. SHANKAR KHUSHI RAM

JUDGEMENT

(1.) This is a petition for revision by Fateh Chand against the order of the Subordinate Judge 1st Class deciding one of the preliminary Issues. The preliminary issue was: Is the suit barred under Order IX, Rule 9 of the Code of Civil Procedure on account of the dismissal in default of previous suit stated in the written statement under Order IX, Rule 9 of the Code of Civil Procedure?

(2.) The facts are as follows: Fateh Chand mortgaged the suit property in favour of Ram Kishan, Shankar and Piare Lal to secure an advance of Rs. 20,000/-. On the 23rd December, 1949, Ham Kishan, one out of the three mortgagees, filed a suit for recovery of his one-third share of the mortgage-debt. An objection was raised that a co-mortgagee could not sue for his share of the mortgage money and in view of this objection an application was made for amendment of the plaint and that application was allowed with the result that the suit was for recovery of the entire amount of the mortgage-debt by Rani Kishan. To this suit the other comortgagees were made defendants. This suit was dismissed on the 25th July, 1952, under Order 9, Rule 9 of the Code, for default of appearance by Ram Kishan. On the 15th of October, 1958, the present suit was filed by the other two mortgagees, Shankar and Piare Lal, for recovery of the mort gage money and the defence of Fateh Chand for which issue No. 1 was framed was that the dismissal of suit under Order 9, Rule 9 of the Code, bars the present suit. This contention has been negatived by the Courts below and hence the pre sent revision.

(3.) The contention of Mr. Narula, Counsel for the petitioner Fateh Chand, is that the pro forma defendants in Ram Kishan's suit, namely, Shankar and Piare Lal be treated as plaintiffs. He is forced to this argument because in order to succeed on the preliminary objection it must beheld that the plaintiffs in the second suit were also the plaintiffs in the first suit and he contended that as they were defendants in the first suit, therefore they should be regarded as plaintiffs because their interests were identical with those of the plaintiff in the first suit. I am, however, unable to agree with this contention, because if his contention is allowed to prevail, then Order 1 Rule 10 of the Code of Civil Procedure will become wholly redundant. A proforma defendant so called remains a defendant for all purposes and if it were not so the Legislature would not have provided that he can apply to be transposed as a plaintiff. Moreover, he can either remain neutral or support the plaintiff or the contesting defendant. The mere fact that his interests are identical with those of the plaintiff will be of no consequence.