Badlu vs Raja Ram and others

A.D. Koshal, J.—The facts giving rise to this second appeal may be stated at some length. Rama Nand was the owner of land situated in village Phusgarh Jagir, Tehsil and District Karnal, including land measuring 46 kanals 3 marks which is now in dispute. He adopted Sewa Singh defendant No. 3 as a son. In the year 1962, Raja Ram, who was the plaintiff in the present proceedings but died during the pendency of this appeal, '' instituted a suit praying for the grant of a declaration that Sewa Singh''s adoption by Rama Nand was invalid. In that suit Raja Ram described himself as a 5th degree collateral of Rama Nand and claimed a right to maintain the suit on that basis. Rama Nand died in January, 1963, and Raja Ram withdrew the suit after obtaining permission of the Court to file a fresh suit on the same cause of action.

Raja Ram then filed suit No 75 of 1933 for possession of the land left by Rama Nand. In that suit Sewa Singh (now defendant No. 3) and Badlu (now defendant No. 1). figured as defendants Nos. 1 and 2 respectively. Raja Ram alleged that the adoption of Sewa Singh was invalid and that although Raja Ram and Badlu were both 5th. degree collaterals of Rama Nand and the land then in dispute was also ancestral qua them and Rama Nand, Raja Ram alone was the sole heir of Rama Nand by virtue of the provisions of the Hindu Succession Act, No. 30 of 1956. It was also alleged in the plaint that Rama Nand''s desire before his death was that his property should not pass after his death to any person except Raja Ram who, it was averred, was looking after Rama Nand and was his sole heir after his death. Another assertion made was that Raja Ram and Badlu were mortgagees with possession of 21 bighas and 10 biswas out of the land then in dispute. In view of this assertion, it was prayed that in case the adoption was not invalidated by the court, a decree for possession of the mortgaged land mentioned above be passed in favour of Raja Ram and Badlu in their capacity as mortgagees thereof.

In the written statement filed by Badlu in that case, he admitted the allegations made by Raja Ram in so far as they related to the adoption of Sewa Singh by Rama Nand. He contended, however, that he was in possession of one-half of the land left by Kama Nand because he and Raja Ram Were entitled to succeed to Rama Nand''s estate in equal shares.

In his replication the plaintiff denied the averments made by Badlu in so far as they ran counter to those made in the plaint.

Sewa Singh came to terms with Raja Ram and agreed to Restore possession of the then disputed land to him on receipt, of Rs.,15,000/-and odd, Raja Ram then applied to the trial Court (application Exhibit D. 3) under Order 1 rule 10, and section 151 of the CPC for striking off the name of Badlu from the plaint on the ground, that Badlu was neither a necessary nor proper party as the (Badli) had no fight of succession to the estate-of Rama Nand in view of the provision''s of the. Hindu Succession Act :Badlu did not oppose this application but made the following statement (Exhibit D. 7):

I am in possession of half the land as heir. If my name is to be struck off, then I should be awarded costs. I am not bound by the settlement which raja Ram had arrived at with Badlu.

Thereafter the trial Curt passed the following order (Exhibit D. 6):

Per request of the plaintiff, the name of defendant No. 2 (Badlu) is deleted from the list of defendants. The plaintiff will pay Rs. 20/- as costs to defendant No. 1 (defendant No. 22)

A decree for possession of the land then in dispute was passed in favour of Raja Ram and against Sewa Singh on the basis of the compromise between the two. Raja Ram took out execution of that decree but Badlu resisted the delivery of possession of that part of the land which was in his occupation. He asserted that he was occupying the land in his own right as an owner by virtue of inheritance and as also a mortgagee, Raja Ram''s application under rule 97 of Order XXI of the CPC complaining of resistance was dismissed and it was then that he brought the suit which has given rise to the present appeal, under rule 103 of Order XXI of the Code. He averred that he alone was entitled to succeed to the estate of Rama Nand, that the decree for possession was rightly passed in the previous suit in his favour and that Badlu defendant No. 1 had no right to or interest in the land of which he was in occupation.

Badlu resisted the suit and reiterated the allegations which he had made by way of defence in the earlier suit. He also urged that the fresh suit was barred by reason of the provisions of rule 2 of Order II of the Code of Civil Procedure.

The learned trial Judge framed the following issues from the pleadings of the parties:

Whether the plaintiff is the heir of Rama Nand deceased and owner of the suit land as such ?

Whether defendant No. 1 redeemed the mortgage of any part of the suit land If so, how much ?

What is the effect of the previous Litigation on the present suit ?

Whether the plaintiff is estopped from filing this suit by his acts and conduct ?

Whether the suit is barred under Order II, rule 2 ?

Whether the suit is within time ?

Whether defendant No. 1 exchanged any land with defendant No. 2 ?

If so, with what effect ?

Issue No 5 was treated as preliminary and was decided in favour of Badlu defendant on the ground that the cause of action in the present suit as well as in the previous one was the death of Rama Nand. The suit was accordingly dismissed.

Raja Ram instituted an appeal against the judgment of the trial Court and the same was accepted on the 15th of June, 1966, by Shri Sarup Chand Goyal. Additional District Judge, Karnal, who was of the opinion that Badlu could not be deemed to be a party to the previous suit as his name had been struck of the record on the application of Raja Ram which Badlu did not oppose and that succession to Rama Nand which is the basis of the dispute in the present litigation-was not relevant in the previous suit-so that the causes of action in the two suits were different. The decree of the trial Court was, therefore, set aside and the suit was remanded to the trial Court for decision on merits.

It is against the judgment of the learned additional District Judge that the present appeal has been filed by Badlu defendant No. 1.

Shri H S. Gujral learned counsel for the appellant, has raised the following three contentions:

(i) The cause of action in the suit in which order Exhibit D.6 was made was the same as that in the suit from which this appeal has arisen and finding of the learned Additional District Judge to the contrary is erroneous.

(ii) Order Exhibit D 6 was made not under the provisions of rule 10(2) of Order I of the CPC but under rule 1 of Order XXIII thereof. In this connection the two factors noted below cannot be lost sight of:

(a) In statement Exhibit D.4 Raja Ram specifically stated that he was giving up his suit against Badlu and was withdrawing the same as against him.

(b) In order Exhibit D.6 the Court did not give any finding on the question as to whether Badlu was or was not a necessary party to the proceedings.

(iii) Even if order Exhibit D.6. could be taken to have been passed under the provisions of rule 10(2) above mentioned, the applicability of the provisions of rule 1 of Order XXIII and rule 2 of Order II of the CPC could not be ruled out, if on the facts the case was covered by these provisions. I shall consider these contentions seriatim.

The first contention of Shri Gujral appears to me to be unexceptionable. In the present suit the cause of action, as pointed out by the learned Additional District Judge, is the death of Rama Nand and the rule of succession under which Raja Ram was Rama Nand''s sole heir. This was precisely the cause of action in the suit in which order Exhibit D. 6 was made and it cannot be said that the inheritance of Rama Nand was not "relevant" to that suit as was erroneously assumed by the learned Additional Sessions Judge. It is to be noted that not only was the said rule of succession specifically pleaded by Raja Ram but he could not also possibly lay claim to the property left by Rama Nand with out asserting that he was Rama Nand''s sole heir. The causes of action in the two suits are, therefore, held to be identical and the finding of the learned Additional District Judge to the contrary is reversed.

The second contention of Shri Gujral appears to be without substance. Statement Exhibit D4 was made by Raja Ram in connection with his application Exhibit D 3 in which no mention of the withdrawal of the suit against Badlu was made. On the other hand, all that was stated in that application was that Badlu was neither a necessary nor a proper party and that his name was liable to be struck off as he had been improperly joined as a defendant in the suit. The application purported specifically to have been made under the provisions of rule 10 of Order I of the Code of Civil Procedure. It is in the light of the contents of that application that statement Exhibit D.4, made by Raja Ram must be construed. He no doubt stated that he was "giving up" and "withdrawing" his suit against Badlu but he also added that Badlu''s name against whom no relief was claimed in the suit be struck off. This statement was obviously made by him in support of application Exhibit D.3 and the use by him of the words "give up" and "withdraw" in relation to the suit would not change the nature of the application or the action which Raja Ram wanted to have taken there under. This was apparently how the Court also construed the statement as it made no order dismissing the suit as, against Badlu but merely said that Badlu''s name was deleted from the list of defendants as requested by Raja Ram. The assertions made in statement Exhibit D 4. do not in this view of the matter convert application Exhibit D 3 from one under rule 10 (2) of Order I of the CPC to another under rule 1 of Order XXIII thereof nor can those assertions be considered to change the nature of order Exhibit D.6 which was obviously made under rule 10 (2) ibid.

It was also not necessary, in my opinion, for the Court trying the previous suit to come to the conclusion that Badlu was a party improperly joined before order Exhibit D 6 could be treated as one falling under rule 10(2). The provisions of that rule come into play as soon as the Court accepts the prayer of a plaintiff that the name of a particular defendant be struck off the record and puts the plaintiff on terms. That this is the correct view of the law is apparent from Mahanath Singh v. U Ba. Y A I R P.C. 110 the facts of which are given and which is discussed at length in a later part of this judgment. It would suffice to say here that according to their Lordships of the Privy Council an order accepting the prayer of a plaintiff for striking the names of some defendants off the record would amount to action taken under rule 10(2) provided the plaintiff was put on terms even though the said defendants might not have been improperly joined and might really be parties necessary to the suit.

Under the circumstances I repel the second contention raised by Shri Gujral.

The third and last contention put forward by Shri Gujral has also no merit. Rule 10(2) of Order 1 runs as follows:

(2) The Court may at any stage of the proceedings; either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

When the Court takes action under this rule by striking out the name, of person joined as a defendant, it proceeds on the assumption that that person was improperly joined. Such person ceases to be a party and must be treated as one who had been.dismissed from the suit which is very different from saying that the suit had been dismissed as against him. This was the view taken in, Abdul Sac alias Varusai Mohammad Sahib Vs. Sundara Mudaliar and Another, wherein the contention that there could be no distinction between the case of a defendant against whom the plaintiff abandons his claim and the suit is accordingly dismissed as against him and a person who has the suit dismissed against him on account of misjoinder was repelled and it was held that the dismissal of a suit against a person on the ground that he was improperly impleaded as a party must be construed to mean that that censed to be a party to the suit notwithstanding whether his name was or was not removed from the record, that it was the duty of the Court to strike off the name of a party improperly joined and that it was quite a wrong procedure to dismiss the suit as against that person. A distinction was drawn between the case of such a person and of one against whom the plaintiff abandoned his claim and had his suit dismissed. To the latter type of cases the provisions of rule 10(2) of Order I of the Code were held to be inapplicable. Abdul Sac''s case (supra) was followed by a Division Bench of the Madras High Court in Jujishti Panda v. Lakshmana Dola Behara AIR. 1933 Mad. 435 with the following observations:

The decree clearly shows that before the compromise was agreed upon, these defendants had been dismissed from the suit. They were dismissed from the suit because the suit could not possibly succeed against them: and in view of the defense raised by them, they were not proper parties to the suit. That being so, the position is exactly the position dealt with by a Full Bench of this Court in Abdul Sac v. Sundara Mudaliar (supra). It is quite clear that, where parties have been wrongly joined and the suit against them is given up by the plaintiff or upon that ground he exonerates them, or there is a finding come to that they have been wrongly joined, then the correct procedure is to strike out their names as having been improperly impleaded. On the exoneration or the striking out of the names of persons on the ground of misjoinder, they cease to be parties to the suit. That is quite clear from the judgment of the Full Bench.

The two Madras rulings were followed in Kumaram Kamesam Bhukta (Died) and Others Vs. Kumaram Lakshminarasama and Others,

The distinction drawn in these authorities between the two types of cases goes unmistakably to indicate that when the name of a defendant is struck off, he ceases to be a party to the proceedings and that there is no question of the suit being considered to have been dismissed as against him. There may, of course, be cases in which action purporting to have been taken under rule 10 (2) may not be covered by that rule; in which case the provisions of Order XXIIII or Order II, as the case may be, might come into play; but unless such a situation arises, the striking out of the name of a party will not bring the case under either of those Orders. This is what appears to me to be the legal position. Support for this view is available in Mahanta Singh, v. U Ba Yi (supra). the facts in which were rather peculiar. The four trustees of a Pagoda had given a contract to the plaintiff, and the respondent had stood surety for 1 he trustees for payment of the contractor''s dues the. contractor sued to recover his dues from all the five, and pending the suit the four trustees were removed and eight others were appointed as trustees of the Pagoda. The contractor then applied to the Court to substitute the new trustees in the place of the old as defendants the application was granted and, therefore, the names of the four original trustees were struck out and those of the new trustees inserted in their place. The suit then proceeded to trial and it was held that the four original trustees were personally liable under the terms of the contract. Hence the claim against the new trustees was dismissed and a decree was passed against the respondent alone as guarantor. In appeal, the respondent contended that he had been discharged from liability as the plaintiff had released the principal debtors by withdrawing his claim against the four original trustees. In considering the effect of the substitution of the names of the new trustees for the old ones Lord Porter observed (p.112):

In England the striking out of the names of four original trustees would not have affected the respondent''s liability. A fresh action could have been brought against them at any time But it is said that the law of Burma differs from the law of England in this respect, and reliance is placed on Order 23, R. 1, Civil P.C... The appellant indeed contended that he had not proceeded under 0.23, R. 1 in applying to substitute the new trustees for the old but that his application was made under Order 1. R. 10 alone. Their Lordships cannot accept this view. The last named rule no doubt authorizes the Court to order the name of a party improperly joined to be struck out and that the name of any person who ought to have been joined be added. But Such an order is expressly made on such terms as may appear to the Court to be just. If no terms are inserted in the order, than, in their Lordships'' view, the effect of withdrawing the suit against some of the defendants is to be ascertained from O. 23, R. 1. It is quite clear that if the substitution of the new trustees in place of the old ones as defendants had been made in the case before their Lordships on terms, it would have been taken to have been made under the provisions of rule 10(2) of Order I and in that situation, rule 1 of Order XXIII of the Code would not have been considered applicable. In the case before me, order Exhibit D.6 was made on terms and must therefore, be held to properly fall under the provisions of rule 10(2) of Order 1 of the Code. If that be so, that order would not be covered by the provisions of rule 1 of Order XXIII or, for that matter, of those of rule 2 of Order II in as much as Badlu ceased to be a party to the proceedings when his name was struck off and the plaint stood amended to that extent. It is to be noted that an amendment of the plaint relates back to the date of the suit as originally filed where no party is added and no new cause of action introduced. The previous suit of Raja Ram must be viewed as one to which Badlu was never a party and to which, therefore, the provisions of rule 2 of Order II and rule 1 of Order XXIII of the Code cannot be made applicable in so far as Badlu is concerned.

I may here discuss the authorities on which reliance has been placed by Shri Gujral in support of his third contention. They are Kanshi Ram v. Rao Baldeo Singh 136 P.R. 1919 Rangacharya and Others Vs. Guru Revti Raman Acharya , Jagtar Singh v. Smt. Hardip Kaur alias Gurvam Kour, 1966 CLJ.825, Ganpatrao Wagle v. Gangadharro A l.R. 1933 Nag 66, AIR 1940 43 (Oudh) and AIR 1932 523 (Lahore)

The first three of these related to cases in which the plaintiff had in the previous litigation withdrawn his suit or abandoned part of his claim so that his case was clearly and specifically covered by the provisions of rule 1 of Order XXIII of the Code. In none of them was there any question of the name of a party having been struck off in an earlier suit. They are, therefore, of no assistance to Shri Gujral.

The Nagpur and Oudh cases, which are both Single Bench decisions, no doubt support Shri Gujral''s contention. It was held therein that where the name of a defendant had been struck off, he could not be sued on the same cause of action because of the provisions of rule 1 of Order XXIII of the Code, unless permission of the Court to bring a fresh suit had been obtained. This dictum cannot be treated as good law in view of what is laid down in the Privy Counsel authority cited and discussed above. The two Madras cases which I have already taken note of on the other hand, conform to the dictum of their Lordships of the Privy Council and, in my opinion, lay down the law correctly, if I may say so with all respect. Under the circumstances I would respectfully differ from the statement of the law contained in the Nagpur and Oudh authorities.

Hari Chand v. Mela Ram (supra), deals with a case in which the facts have no relation to those of the case before me and may be stated. A previous suit for possession by the mortgagee was based on a clause in the mortgage deed that if the money was not paid by a certain date, the mortgagee would be entitled to possession of the mortgaged property. That suit was dismissed for default. The subsequent suit was brought on the basis of another clause in the mortgage deed which was to the effect that if the mortgagee lost possession of the mortgaged property, he would be entitled to recover the mortgage money from the other property and the person of the mortgagor. It was on these facts that it was held that the cause of action in the two suits was the same and that the second suit was barred by the provisions of rule 2 of Order II of the Code inasmuch, the plaintiff could, in the first suit, claim the relief prayed for in the subsequent suit. The situation in that case was never one involving the striking off the name of the defendant in the earlier litigation or of the legal effect of such a situation on a subsequent suit. Hari Chand v. Mela Ram (supra), therefore, is no authority for the proposition that if the name of a person is struck off the list of defendants, the provisions of rule 2 of order II of the Code would bar a subsequent suit against him on the same cause of action.

No other point has been urged before me and for the reasons stated, I find no force in the appeal which is dismissed. In view of the questions of law involved, however, I would leave the parties to bear their own costs.