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Judgment
In the petitioner's suit in O.S.No.803/2015, the prayer is for a decree of mandatory and permanent injunctions in respect of the suit property which happens to be the subject matter of the contesting respondents' O.S.No.320/2004 which has been decreed by the trial Court and the said decree has already been confirmed in the petitioner's appeal in R.A.No.313/2009 and further that the petitioner's second appeal against the same in R.S.A. No.5216/2011 is said to be pending; it is stated that, this Court has granted interim stay against the decrees in challenge.
On the basis of the decrees of the Courts below in respect of the very same subject property, the contesting respondent herein had filed an application seeking his impleadment, as one of the defendants to the suit in question and that the trial Court has allowed the same vide order dated 30.01.2017, which is put in challenge in this Writ Petition.
After service of notice, the respondents have entered appearance through their respective counsel who together submit that the petition be dismissed.
The learned counsel for the petitioner/plaintiff vehemently argues that the law is well settled that it is for the DOMINANT LITUS to choose as to who should be his opponent/respondent in the proceedings; the Court cannot impose anyone as the opponent, although the Court may non-suit him on the ground of non-impleadment of necessary party/a proper party; the prayer in the present suit is much different from the prayer in the earlier suit between the respondents herein and therefore the decree made therein is irrelevant to decide whether the contesting respondent herein should be added as a party to the suit proceedings; the application for impleadment is not BONAFIDE being the one designed to protect the proceedings.
Per contra the learned counsel for the contesting respondents submits that the property in both the suits is one and the same; already the suit of the respondent is decreed and the same has been confirmed in the R.A; the second Appeal filed by the petitioner herein pends on the file of this Court on the Civil Side; that being so, the contesting respondent is a necessary and proper party to the adjudication of the suit of the petitioner, in asmuchas the likely decree will definitely cast its shadow on her rights to and interest in the subject property.
The learned counsel for the petitioner points out that the reasoning of the trial Court as reflected in paragraph 16 of the impugned order as to interim stay of the judgments and decrees in O.S. No.320/2004, is flawsome inasmuch as the said decrees are held to be in force and operate against the parties; thus, there is error apparent on the face of the record that warrants indulgence of Writ Court for quashment of the impugned order.
I have heard the learned counsel for the petitioner and the learned advocates for the respondents. I have perused the petition papers, having adverted to the Rulings cited at the Bar.
The contention of the learned counsel for the petitioner/plaintiff is that he is the DOMINANT LITUS and therefore he will choose his opponent as a general rule of law is true as held by the Division Bench of this Court in the case of Kumari Lata vs. Sri Shivaji Rao and Others reported in ILR 2018 KAR 95. However, the said general rule registers several exceptions and one of them is that, when the ultimate result of the proceedings is likely to adversely effect the rights or interest of others, then, such likely victims are ordinarily necessary and proper parties vide Apex Court decision in the case of Razia Begum v. Sahebzadi Anwar Begum and others reported in AIR 1958 SC 886.
The learned counsel for the petitioner submits that, the reasoning of the Court below as reflected in paragraph 16 of the impugned order in holding the decrees impugned in the Regular Second Appeal as being in force and operative despite the stay granted thereto renders the impugned order vulnerable is too farfetched an argument. What the Court below has said in paragraph 16 is that there are judgments and decrees that are in existence which relate to the very same property, notwithstanding the same having been stayed in the Regular Second Appeal.
A few stray sentences occurring in the Court judgments cannot be interpreted as Euclid's Theorems as constituting a solid ground for invalidating the very order itself.A judgment cannot be understood just by reading a few sentences in a paragraph unmindful of its content, as if they are stand alone islands. The intent of the judgment should be gathered by reading at least all the relevant paragraphs therein if not in its entirety. The Apex Court in the case of Commissioner of Wealth Tax Vs. Dr. Karan Singh and Others, reported in 1993 Supp (4) SCC 500 has observed:
"The basic rules of interpreting Court judgments are the same as those of construing other documents. The only difference is that the Judges are presumed to know the tendency of parties concerned to interpret the language in the judgments differently to suit their purposes and the consequent importance that the words have to be chosen very carefully so as not to give room for controversy. The principle is that if the language in a judgment is plain and unambiguous and can be reasonably interpreted in only one way it has to be understood in that sense, and any involved principle of artificial construction has to be avoided. Further, if there be any doubt about the decision, the entire judgment has to be considered, and a stray sentence or a casual remark cannot be treated as a decision."
What the trial Judge meant by the observations at para 16 of the impugned order is that, the decrees put in challenge in the RSA despite ad interim order of stay granted by this Court do not wither away in thin air and that they do exist in suspended animation, although they lack enforceability during the stay period. This is perfectly consistent with what the Apex Court said in the case of SHREE CHAMUNDI MOPEDS LTD., VS. CHURCH OF SOUTH INDIA TRUST ASSN. 1992 SCR (2) 999 : 1992 3 SCC 1. When an order is quashed or set aside by a competent Court/Authority, it no longer exists whereas, when an order is stayed, it continues to exist in law and in fact although it is inoperative as long as the stay continues; thus, an interim stay does not vipe out the order stayed from its existence.
In the above circumstances, the writ petition being devoid of merits stands dismissed.
Pending applications if any, pale into insignificance, since the main matter itself is disposed off on merits.
No costs.