JOGINDER SINGH Vs. KRISHAN LAL

JUDGEMENT

(1.) In order to appreciate points of law which call for decision in this petition it is necessary to survey in brief the relevant facts of this case. Krishan Lal Plaintiff-Respondent filed an application of redemption of the land in dispute before the Collector on December 3, 1969. The application was dismissed by the Collector on November 30, 1970. On November 30, 1971 (December 3, 1971), Krishan Lal Respondent filed this suit for declaration to the effect that the order of the Collector by which his application for redemption had been rejected was improper, against law and against the provisions of the Redemption of Mortgages (Punjab) Act, 1913, and was, therefore, null and void. A further declaration was prayed to the effect that the Plaintiff-Respondent is entitled to redeem the land in question under Section 12 of the said Act. Defendants 1 to 9 in the suit as originally filed were the mortgagees. Defendants 10 to 13 were co-mortgagors of the Plaintiff-Respondent. Defendant No. 5 Sant Singh and Defendant No. 9 Khushal Singh were amongst the mortgagees. During the pendency of the suit it transpired that Khushal Singh had died as long ago as on May 18, 1962, and Sant Singh had died on January 26, 1966. It is the admitted case of both sides that each of the said Defendants had died even prior to the application filed by the Plaintiff-Respondent before the Collector.' Faced with this situation the Plaintiff made an application under Order 6 Rule 17 of the Code of Civil Procedure to the trial Court on August 18, 1973, for substituting the names of the Jegal representatives of the said two Defendants on the record of the suit. In paragraph 8 of the application it was stated that the names of Defendants Nos. 5 and 9 were liable to be struck out and the names of their legal representatives were entitled to be substituted for them. In paragraph 9 the names of the legal representatives (ja-nashin) of Sant Singh and in paragraph 10 the names of legal representatives of Khushal Singh were mentioned. The ultimate prayer in the application was contained in paragraph 14 to the effect that for the names of Sant Singh and Khushal Singh should be substituted the names of their legal representatives. The precise amendment to be made was detailed in paragraph 15 wherein it was stated that on the plaint being amended as prayed (a) the names of Sant Singh Defendant No. 5 and Khushal Singh Defendant No. 9 would be deleted; and (b) the names of the legal representatives of Khushal Singh named in paragraph 10 and those of Sant Singh named in paragraph 9 would be arrayed amongst other Defendants in the description of parties in the plaint. As a result of the contest of the application by the Defendants the trial Court on November 16. 1973, framed an issue to the effect "whether the deaths of Sant Singh and Khushal Singh were not known to the Plaintiff at the time of filing of the suit, if not to what effect - The finding of fact recorded on the above issue by the trial Court in its order under revision is that the Plaintiff Respondent had no knowledge about the death of either of the two deceased Defendants before the filing of the present suit. Having come to that finding the Court below has held that:

(2.) Not satisfied with and aggrieved by the above-mentioned order of the trial Court on issue No. 2 (relief), Joginder Singh etc. Defendants have come to this Court. It has been contended on their behalf that notwithstanding the finding of fact recorded by the trial Court on issue No. 1 (which has not been contested before me), the trial Court could not have permitted the amendment of the plaint and the operative part of the order under revision is liable to be set aside. Mr. P.N. Aggarwal, learned Counsel for the Plaintiff-Respondent, raised a preliminary objection to the effect that the revision petition is liable to summary dismissal as the Defendant-Petitioners have not impleaded Defendants Nos. 14 to 17 as parties to this petition though they were necessary parties in view of the provisions of Order 34 Rule 1 of the Code the principles of which provision would apply to a petition for revision arising from a suit covered by that rule. The first question is whether the strict requirements of Order 34 Rule 1 would or would not apply to a petition for revision of an interlocutory order passed in a mortgage suit. Secondly, all that the said rule requires is that all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties "to any suit relating to the mortgage." The argument of Mr. Sarwan Singh is that the suit from which the present revision petition has arisen is a suit for declaration of the order of the Collector being null and void and does not directly relate to the mortgage. In the alternative Mr. Sarwan Singh has contended that if the Court finds that the said Defendants are necessary parties to the present petition, he may be permitted to join them, in which event he would pray for condonation of delay in filing the petition against those Respondents.

(3.) The interest of Defendants 14 to 17 is the same as that of the Plaintiff-Respondent, who is represented before me, as they are all co-mortgagors. Even if the suit in the trial Court is held to relate to the mortgage in question, this Court can exempt the impleading of any party or parties to the suit whose interest is adequately represented before the Court. On the facts and circumstances of this case it appears that Defendants 14 to 17 are not necessary parties to this petition. It is also doubtful if the suit from which these proceedings have arisen can be said to relate strictly to the mortgage. In a loose sense it does relate to the mortgage as the ultimate aim of the Plaintiff-Respondent is to have a declaration to the effect that he is entitled to redeem the mortgage under the provisions of the Act. Though he wishes to reach that target by getting a declaration to the effect that the order passed by the Collector is null and void, strictly speaking this suit is not for redemption and in that sense it may fairly be argued that the suit does not relate to the mortgage. Even if I had held in favour of the Plaintiff-Respondent on these two points arising out of the preliminary objection, I would have allowed the Defendant-Petitioners to implead the absentee Defendants as parties to this petition and would have condoned the delay as the error is obviously not deliberate and there is force in the contention of the learned Counsel that the error is merely typographical and accidental. It is for these reasons that I overrule the preliminary objection.