ACHALULAL Vs. SURENDRA KUMAR

JUDGEMENT

(1.) THIS revision petition is directed against the order dated January 6, 1987 of the learned Civil Judge, Jodhpur, whereby he has rejected the application filed by the petitioner Achalulal under O. l, r. 10 C. P. C. for impleading him as a party in the suit.

(2.) A few facts leading to this revision petition briefly stated are : that on 23. 8. 1985, the applicant-petitioner filed an application under O. l, r. loc P. C. in the court of the learned Civil Judge, Jodhpur pleading inter-alia, that the plaintiff-non-petitioner No. 1 filed a suit against the defendant-non-petitioner No. 2 about a house built on plot No. 82 in Sector-A Shastri Nagar, Jodhpur. He has claimed that he is the owner of the house and defendant is the tenant of the suit house. In fact, this house does not exclusively belong to the plaintiff. It is joint property of the plaintiff and the applicant and the plaintiff has been recovering rent of this house from the defendant and the receipt have been issued in the name of plaintiff or in the name of the father of the applicant and the plaintiff. He has, therefore, claimed that decision in this suit will effect the rights of the applicant about the suit property and, therefore, he is a necessary party to the suit and so, he should be impleaded as a party to the suit.

(3.) MR. R. R. Nagori, learned counsel appearing for the applicant-petitioner has submitted that it has been, held by their lordships of the Supreme Court in Razia Begum Vs. Anwar Begum (1) that the question of addition of parties under r. 10 of 0. 1 of the Code of Civil Procedure is generally not one of the initial jurisdiction of the court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. Their lordships have further, observed 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 in the subject - matter of the litigation. 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, MR. Nagori has admitted that the applicant-petitioner has a, direct interest in the property, because the property belonged to his father and now on the basis derivated title, the. plaintiff non-petitioner No. land the applicant-petitioner both have equal share in the property. The Will has not been probated. According to him, if the plaintiff i$ allowed to get possession of the property incase the suit is decreed against the tenant (defendant-non-petitioner No. 2), he will have to file a fresh suit to recover possession and so,. in order to effectively and completely adjudicate upon the controversy, the appllcant-petitioner's presence in the, suit isessential and that will save, him from filing a fresh suit.