Avtar Singh Sahni and others vs Ch. Kalyan Singh and others

This revision petition is directed against the order of the trial Judge declining the prayer of the legal heirs of Agya Ram for substituting them as applicants in application under Order 1, Rule 10, CPC (the Code, for short) filed by deceased Agya Ram, for being impleaded as a defendant on the ground that he was a necessary party to the suit he being a direct lessee of the property in dispute under the original owner in 1988.

Ch. Kalyan Singh, Director of New Snow View Transport Pvt. Ltd., Pathankot filed a suit for declaration to the effect that he was the exclusive owner in possession of property No. 1167-A(P) situate on Railway Road, Pathankot and the orders dated August 11, 1987, February 14, 1989 and September 18, 1989 passed by the Chief Settlement Commissioner, Gurdaspur, Financial Commissioner, Punjab and Tehsildar (Sales), Pathankot, respetively, proposing to auction the property in dispute, were illegal and void and by way of consequential relief sought permanent injunction for restraining the defendants to the suit were the State of Punjab through Collector, Gurdaspur and Tehsildar (Sales), Pathankot. Agya Ram was a party to the orders challenged in the civil suit. He filed an application under Order I, Rule 10 of the Code for impleading him as a party defendant to the suit. The application was contested by plaintiff-respondent No. 1.

During the pendency of the suit, Agya Ram died and an application was moved by Avtar Singh Sahni, Vinay Sahni and Jai Deep Sahni, sons of Atma Ram, for substituting them as successor-in-interest of Agya Rani in the application under Order 1, Rule 10 of the Code. It was stated therein that Agya Ram executed a will dated August 1, 1989 bequeathing his estate in favour the applicants who are his nephews. Agya Ram died on November 18, 1989. The application was contested by the plaintiff-respondent No. 1.

The trial Judge declined the prayer on the ground that provisions of Order 22, Rule 4 of the Code were not attracted since Agya Ram was not one of the defendants in the suit and after coming to that conclusion, he rejected the application for substitution filed by the petitioners.

The approach of the trial Judge, to say the least, is wholly erroneous. The provisions of Order 22, Rule 4 of the Code are not exhaustive. It does not encompass in its ambit eventualities of the kind as happened in the instant case. The Code is not exhaustive and the civil court has, therefore, in many cases where circumstances require, acts upon the assumption of the possession of inherent powers to act ex debito justitiae for the administration for which it alone exists. This power relates to the matters of procedure and has to be exercised only for ends of justice. In Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , question arose whether a Court can issue an interim injunction under circumstances which are not covered by Order 39 of the Code. The question was answered thus at page 532:--

"It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression ''if it is so prescribed'' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of S. 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the powers of the Court to issue temporary injunction that the provisions of S. 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.

There is nothing in O. XXXIX, Rr. 1 and 2, which provide specifically that a temporary injunction is not to be issued in cases which are not mentioned in those rules.

"The rules only prove that in circumstances mentioned in them the Court may grant a temporary injunction.

Further, the provisions of S. 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. S. 151 reads:

''Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.''"

If the Code contains no express provision on a matter, the Court can exercise its inherent power for the ends of justice. In the instant case, the Court ought to have substituted the legal heirs of deceased Agya Rani in exercise of its inherent power under S. 151 of the Code. Failure to do so has resulted in miscarriage of justice.

For the reasons stated above, the order of the trial Court dated March 18, 1991 is quashed. The plaintiff-respondent No. 1 has taken wholly illegal stand. Interests of justice will be adequately met if the revision petition is dismissed with costs. Counsel fee is assessed at Rs. 3,000/-. Parties through their learned counsel are directed to appear before the trial Judge on November 15, 1991.

Petition dismissed.