SHANKAR LAL Vs. LATAFAT ALI

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff under the provisions of Section 82 of the Transfer of Property Act. The plaintiff contends that there was a mortgage which affected properties which are mentioned in lists A and B attached to the plaint. He is the purchaser of one of the items mentioned in list A. The suit was brought on foot of the mortgage and the property in list A only was sold. This was sufficient to satisfy the mortgage-decree. He made defendants to the suit all the persons whom he believed, as he alleged, to be the purchasers of the properties mentioned in list B. He omitted to make parties to the suit some of the other purchasers of the property mentioned in list A. The Court of first instance dismissed the plaintiff s suit on two grounds: (1) that one of the purchasers of the property mentioned in list B was not made a party, (2) that he had failed to prove the values of the several properties. The lower Appellate Court dismissed the appeal.

(2.) The plaintiff comes here in second appeal, and contends that he ought to have been alloved an opportunity of bringing the necessary parties on to the record and that the valuation of the property ought to be taken as found in the sale deeds and sale-certificates. In our opinion, it is the duty of a plaintiff to take every reasonable precaution to have the necessary parties before the Court. If by some accident some party is omitted, an application to bring him on to the record ought to be made at the earliest possible opportunity. It is obviously very inconvenient that parties should be added after issues have been framed and evidence given. The addition of fresh parties means that the case must, practically speaking, be heard da novo. The issues ought to be re-framed and the evidence taken afresh in the presence of the new parties. It also leads to the waste of public time. Under the circumstances, however, of the present case, we are prepared to allow the plaintiff an opportunity of bringing the necessary parties before the Court, but only on the terms which we shall mention later on. In our opinion, where a suit is brought for contribution to enforce a statutory charge mentioned in Section 82 of the Transfer of Property Act, all the persons in whom all the mortgaged property is vested should be made parties. It is only when such persons are properly before the Court that a proper decree finally settling all disputes can be made. In the prese t case, not only all the persons to whom the property mentioned in list B now belongs should be parties, but also the owners of the property mentioned in list A not purchased by the plaintiff. It was by the sale of all or the greater part of the property mentioned in list A that the mortgage-decree was discharged. The purchaser of this property will also have a charge against the defendants, if it is found that their property had to bear more than its rateable share of the mortgage-debt. It is impossible to satisfactorily ascertain the value of the different item3 of the property unless the owners are before the Court.

(3.) Another matter dealt with by the Courts below is the question as to the date at which valuation of the different items of property is to be taken. There is no doubt that the valuation ought to be as at the date of the mortgage, but we think that if the plaintiff adduced evidence to show the value of the property at the time that he purchased it, it would lie upon the other side to say that the valuation at the date of the mortgage was different. The Court would be wrong in refusing the plaintiff s relief merely on the ground that the evidence he adduced as to the valuation of the property referred to its value at the present time or at the time of sale. We allow the appeal, subject to the conditions hereafter mentioned, and remand the ease to the first Court, through the lower Appellate Court, with directions to re-admit the suit on its original number and to allow the plaintiff an opportunity of bringing on to the record all necessary parties The plaintiff, however, must pay the costs incurred in this Court and in both the Courts below, as a condition precedent to the case being restored to its original number. If he fails to comply with this condition, his appeal will stand dismissed with costs, which in this Court will include fees on the higher scale. The costs must be paid within three months from the date the record is received back in the lower Court.