GH MOHD SHAH Vs. MOHD AMIN SHAH

JUDGEMENT

(1.) NOTICE of this petition was given to respondents despite due and proper service, they are absent. This motion of revision is aimed at revising the order dated: 28 -05 -2001, recorded by the learned 2nd Addl. Munsiff Srinagar, in Civil Original suit titled Mohd Amin Shah Vs. Jameel Ahmad and ors. With respect to an application of the petitioner revisionist for impleadment of party in the suit. It appears that a suit for declaration with consequential relief of possession came to be instituted by respondent No.1/plaintiff Mohd Amin Shah against the defendant/remaining respondents herein before court of learned District Judge, Srinagar, who came to transfer the suit file to the court of learned 2nd Addl. Munsiff Srinagar. In the suit, the plaintiff/respondent No. 1 had sought Decree for Declaration with respect to the suit land with a consequential relief of perpetual injunction against the remaining respondents/defendants who came to admit the suit of the plaintiff by virtue of their joint written statement. During the pendency of the suit Ghulam Mohd Shah alias Gulla Shah S/o Ghulam Rasool Shah alias Rasool Shah, the petitioner herein filed an application presumably under Order 1 Rule 10 of the Code of Civil Procedure, Svt. 1977 (1920 A.D.), claiming therein that he is owner of the suit land alongwith the plaintiffs and the defendants, as the same being their ancestral property and is undivided and joint in between him and the parties of the suit. This application came to be resisted by the plaintiff respondent No. 1 on the ground that he and defendant No.5 are in peaceful possession of the suit property as the same being the self acquired property of his father and defendant No.5 and father of defendants 1 to 4 and that the applicant had instituted a suit for partition and possession against the plaintiff and their father way back in 1955, which came to be dismissed and that in case the petitioner has any right or interest, the same is time barred.

(2.) HEARD the learned counsel for the petitioner.

(3.) IT is well settled principle of law that court has discretion to implead any person as a party to the suit whose presence is found necessary to enable it to effectually and completely to adjudicate upon all the points involved in the suit. Besides this, the court can also consider if the person seeking his impleadment as party has a prima facie case and a bonafide claim to the settlement of the suit property. Their Lordships of the Apex Court in a case titled as Razia Begum Vs. Anwar Begum Reported in AIR 1958 SC 886, have laid down the following principles to add parties in a suit under Rule 10 Order 1 Code of Civil Procedure, Svt. 1977 (1920 A.D.), which are enumerated as: - 1. That the question of addition of parties under Rule 10 Order 1 of the Code of the Civil Procedure is generally not one of initial jurisdiction of the court, but of a judicial direction which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, if may raise controversies as to the power of the court in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction, in the limited sense in which it used in Section 115 of the Code; 2. That in a suit relating to property, in order that a person may be added as a party he should have a direct interest as distinguished from a commercial interest, is the subject matter of the litigation; 3. 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;