Kartar Singh and others vs Arjan Singh and others

D.S. Tewatia, J.—one Harnam Singh on 16.10.1930 sold the land measuring 103 Kanals and 15 marlas to Lal singh son of Sahel Sing and Hira singh son of and Luhara Singh. Buta Singh successfully challenged the said alienation and secured a declaratory decree, dated 18.6.1934.

Arjan Singhm, Jagir Singh and Sodagar Singh, sons of Buta Singh, filed the present suit for possession of the said land on 20.4.1967 on the basis of the aforesaid declaratory decree. In para 4 of the plaint, they averred that Harnam Singh, the vendor, died on 16.4. 1967. The suit was contested by the vendees through their heirs, namely, Kartar Singh, Sardara Singh, Gulzara Singh Jagir Singh and Arjan Singh sons of Hira Singh; Gurdial Singh and Kartar Singh sons of Lal Singh; Harbans Kaur, Kulwant Kaur and Kirpi daughters of Lal Singh; Hari Singh son of Smt. Bibi, daughter of Lal Singh and Smt. Nihal Kaur widow of Lal Singh, inter alia, on the ground of limitation The trial, court on the basis of the pleadings of the patties framed the following as one of the issues:

when Harnam Singh died and whether the suit is within limitation?

The trial court dismissed the suit on the ground of its being barred by limitation The abovesaid heirs of the vendee challenged the said judgment and decree of the trial Court in appeal.

During the pendency of the suit before the trial Court one Ind Kaur claiming herself to be the daughter of Sher Singh, brother of Buta Singh, the original holder of the declaratory decree, dated 18.6.1934 filed an application praying to be impleaded as one of the parties to the suit being the heir of Sher Singh and hence entitled to take the benefit of the declaratory decree. Her application was opposed by the plaintiffs i.e. Arjan Singh, Jagir Singh and Sodager Singh sons of Buta Singh. The trial court, by its order, dated 1.1.1968 dismissed her application and declined to implead her as a party to the suit on the ground that she was not the kind of heir who could take the benefit of the declaratory decree, dated 18.6.1934, so not entitled to a share in the land covered by the said decree, and hence could not join as a party to the present suit.

However, during the pendency of the appeal before the lower appellate Court at the instance of the said sons of Buta Singh, their Lordships of the Supreme Court in Giasi Ram and Others Vs. Ramjilal and Others, held that they were unable to agree with the High Court that because in the year 1920 the wife and the daughters of one Jawala were incompetent to challenge alienation of ancestral property by Jawala, they could not after the enactment of the Hindu Succession Act, inherit his estate when succession opened out after that Act came into force, as in their view a declaratory decree obtained in a suit instituted by a reversioner competent to sue pad the effect of restoring the property alienated to the estate of the alienor and all persons who would but for the alienation had taken the estate would be entitled to inherit the same the facts which led their Lordships of the Supreme Court to hold as such were that one Jawala alienated his property but his reversioners challenged the said alienation and secured a declaratory decree against the vendee. The said Jawala died after the coming into force of the Hindu Succession Act. His three sons, two daughters and a widow sued for possession of the land alienated by Jawala on the basis of the said declaratory decree. The learned Senior Subordinate Judge decreed the suit for one-half share in the property claimed by the plaintiffs on the ground that only the sons of Jawala could claim the benefit of the decree and since their share in the estate of Jawala was in the aggregate only one-half, the remaining half having devolved on the widow and the two daughters, a decree for one-half share in the land alienated could be passed against the alienee i.e. the vendee. In appeal, the lower appellate Court decreed the claim of the plaintiffs in its entirety, but the High Court on a second appeal set aside the decree passed by the lower appellate Court and restored that of the trial Court holding that under the Hindu Succession Act, 1956, the two daughters and the widow of Jawala could inherit a share in the estate of Jawala, but since by section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those persons could take the benefit of the declaratory decree obtained by any one of the reversioners who could contest the alienation by the vendor and it was a "settled rule of custom that a female heir cannot contest the sale by a male owner, a half share in the estate of Jawala which devolved upon the sons could be claimed by them, and the widow and the daughters could not obtain benefit of the decree.

The plaintiffs, Arjan Singh, etc., lost the case in the trial Court on the question of the limitation on account of their failure to bring relevant legal evidence on the record, which defect could only be cured if somehow the case could be tried de novo. The above said decision of Supreme Court in Giani Ram''s case held out a gleam of hope inasmuch as it ruled that a female heir could take the benefit of the declaratory decree of the kind by filing a suit for possession and this decision removed lock and barrel the only ground on which the trial Court based the dismissal of her application to become a party to the suit; and thus cleared the way for her being impleaded a party to the suit, which the plaintiff now devoutly wished, as this held out the only hope of getting the case remanded for being tried de novo. So the said decision of their Lordships of the Supreme Court in Giani Ram''s case (supra) tempted the appellants before the first appellate Court, that is Arjan Singh, etc., to move the application dated 27th August 1969, before the lower appellate Court to implead Ind Kaur as one of the co-plaintiffs with them. On 2nd December, 1969, Ind Kaur, perhaps egged on to it by the said appellants, also moved a similar application praying therein to be impleaded as a co-plaintiff to the said suit. The plaintiff, who were the appellants before the lower appellate Court and who had earlier successfully opposed a similar application of Ind Kaur in the trial Court, changed sides in the appellate Court, and succeeded in getting Ind Kaur impleaded as a co-plaintiff to the suit and getting the suit remanded for retrial by the trial Court afresh, vide judgment of the Additional District Judge, dated 17th April, 1970, and it is this judgment which is under challenge before me at the instance of the vendee-defendants.

Mr. G.R. Majithia, Learned Counsel for the appellants, has advanced the following three contentions before me:

(1) that the order of the trial Court, dated 1st January, 1968, refusing to implead Ind Kaur as a party to the suit became final and any subsequent application either before the trial Court or before any superior Court for the same purpose will be barred by the principal of res-judicata;

(2) that the power of remand cannot be exercised to fill in the lacuna in the evidence and the successful party cannot be deprived of a right which accrued to it from the finding in the judgment and decree of the trial Court that the suit was barred by limitation; and

(3) that a decree under appeal cannot be reversed for the sake of remanding the case to the trial Court, rather the case can only be remanded to the trial Court if the decree on merit is reversed.

Mr. B.S. Jawanda, Learned Counsel for the respondents, Ind Kaur and Arjan Singh and others, has urged that the appellate Court is competent to implead a necessary party under Order 1, rule 10, Civil Procedure Code, even if it necessitates retrial. He has further urged that the order of the trial Court refusing to implead Ind Kaur as a party to the suit cannot operate as res judicata.

After hearing the Learned Counsel on both the sides and after giving the matter my careful consideration, I am of the opinion that this appeal must succeed.

The crucial point that arises for consideration is as to whether the applications of Ind Kaur and that of Arjan Singh etc. for impleading Ind Kaur as a co-plaintiff to the suit moved before the lower appellate Court are barred by principle of res judicata or not.

Mr. Jawanda, Learned Counsel for the respondents, in an effort to establish that the above said applications presented before the lower appellate Court were not barred by the principle of res judicata argued that, firstly, an interlocutory order is not appealable or revisable and hence it cannot operate as res judicata barring subsequent application for achieving the same objective and, secondly, interlocutory orders, such as the present one refusing to implead a party to the suit, in any case, do not operate as res judicata barring any subsequent application in that regard.

To substantiate his first argument, Mr. Jawanda placed reliance on a Single Bench decision of this Court reported in Ram Chander v. Kidar Nath 1968 Cur LJ (P&H) 988. In that case, the trial Court passed an interlocutory order regarding the payment of Court-fee on a certain document. The party aggrieved by the said order came up in revision to the High Court. Two preliminary objections were raised before the High Court by the respondents against the maintainability of the revision, firstly, that the revision petition against an interlocutory order was not maintainable and, secondly, that the appellate Court was competent in appeal to correct the mistake if any, of the trial Court, while hearing the appeal. Pandit J. did not touch the first preliminary objection, as he considered the second preliminary objection sufficient to hold against the maintainability of the revision petition. While holding the petition to be not maintainable, he made the following observations:

Even if the decision of the Court below be wrong either in facts or in law, the same could not be a ground for revision, because the Court below had jurisdiction to decide it either rightly or wrongly. The mistake, if any, made in this behalf could be corrected it an appeal against the final decision in the suit given by the Court below.........

In my opinion, the ratio of the aforesaid decision is not applicable to the facts of the present case, as in that case the question as to whether an interlocutory order is revisable or rot was left unanswered. On the contrary Sarkaria, J. in Banarsi Dass Durga Prashad Vs. Panna Lal Ram Richhpal Oswal and Others, answered the abovesaid question in the affirmative. I am in respectful agreement with the principle enunciated by Sarkaria J. that an interlocutory order refusing to implead a party to the suit is revisable hence, if the order is revisable and no revision is preferred, then such an order becomes final and any subsequent application in that respect must be held to be barred by the principle of res-judicata.

In support of his second argument that interlocutory orders do not operate as res judicata, Mr. Jawanda referred to a decision of the Mysore High Court in Bhujanga Hedge and another v. Sakarama Hedge AIR 1971 Mys. 208. The facts involved in that case were that a third person moved an application under Order 1, rule 10, Civil Procedure Code, to be impleaded as a party to the suit. Both the plaintiffs and the defendants were one in opposing the said application which fact led to its dismissal. In the appellate Court, however, the defendant-respondents themselves moved an application for impleading the said third party to the suit. The question that arose in that case on these facts was as to whether the application before the appellate Court was barred by the principle of res-judicata. Venkataswami, J., while delivering the judgment, held that since both the defendants and the plaintiffs were one in opposing such an application in the trial Court, so there was no issue between the defendants and the plaintiffs inter-se, nor were they aggrieve by the order of the trial Court, as it was in their favour, and thus the said order was unchallengeable at their instance in revision and hence that order would not operate as res judicata to a subsequent application moved by the defendant. In my opinion, the facts of that case are clearly distinguishable and the ratio of the same is not attracted to the facts of the case before me, the facts of which are entirely different. In the present case, at the trial stage, the plaintiffs were opposed to the impleading of Ind Kaur as a party to the suit, while the defendants were in favour of her being impleaded as one of the parties. Hence, with regard to the impleading of Ind Kaur as a party to the suit, there was an issue between the defendants and the plaintiffs. Thus, by necessary implication, in view of the ratio of the aforesaid judgment in Bhujanga Hedge''s case (supra), both the subsequent applications moved by the plaintiff-appellants and Smt. Ind Kaur in the lower appellate Court were barred by the principle of res-judicata.

The abovesaid authority in Bhujanga Hedge''s case having almost backfired, Mr. Jawanda then rivetted his hopes o Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, . This is a ruling which the other side find no less helpful to its case. The proposition of law enunciated by their Lordships of the Supreme Court in that case is that an interlocutory order against which no appeal lay did not operate as res-judicata unless that order finally closed the proceedings in which it was passed.

In my opinion an application by a stranger to the suit to get himself impleaded as a party to a pending suit in the trial Court does give rise to separate subsidiary proceedings in that suit and an order refusing to implead such a person as a party to that suit finally closes those proceedings. Hence in the light of the principles enunciated in the aforesaid Supreme Court judgment, that order, if not got revised, will operate as res-judicata. So this ruling has the effect contrary as the one Mr. Jawanda had in mind. In my view, this authority finally clinches the issue against the respondents and so I hold that the earlier order, dated 1st January, 1968, would operate as res judicata and shall have the effect of barring subsequent application to that end whether presented before the trial Court at a later stage or before the appellate Court.

As in view of my finding to the effect that the subsequent applications before the lower appellate Court at the instance of the respondents before me, as also by Ind Kaur, were barrad by the principle of res judicata, cosideration of the further points raised by the Learned Counsel for the appellants and in reply the authority cited by Mr. Jawanda for the respondents become unnecessary and so I do not propose to examine in detail the merits of those contentions.

However, before parting with the judgment, in fairness to Mr. Jawanda, it may be stated that he cited Seshamma and another v. Chennappa ILR 20 Mad 467, Noor Mohammad and Others Vs. Zainul Abdin and Others, Firm Shiam Lal Joti Prasad Vs. Dhanpat Rai and Another, . AIR 1939 346 (Lahore) and Shri Krishna Talwar v. The Hindustan Commercial Bank Ltd Kanpur (1957) 59 PLR 117, in an attempt to show the wide powers of the appellate Court under Order 1, rule 10, Civil Procedure Code, to order the impleading of the necessary parties to a suit. The Learned Counsel for the respondents also cited a decision of the Calcutta High Court reported in Sheikh Faizu Vs. Sheikh Doman, to establish that a party in the position of Ind Kaur in the present case has to be considered a necessary party to a suit.

I do not propose to consider the rulings stated by him in detail, as observed by me above. I consider it sufficient to say that Ind Kaur, in my opinion, is not a necessary party to the present suit and the ratio of Faizu''s case is not attracted to the facts of the present case. In Faizu''s case, the plaintiff had sought a declaration that he was entitled to a certain property exclusively without impleading certain other persons who were interested in the said property. Obviously in a case like Faizu''s, in which a declaration of title was sought, the parties who had interest in the property and had claimed a right in the property indispute, were of course necessary parties. But in the present case the suit is for possession on the basis of a certain decree, which confers a right in the property covered by the said decree on all the heirs of the last male-holder, and if a particular heir brings the suit for possession claiming himself to be the sole claimant, then to such a suit other heirs, if there are any, cannot be considered necessary parties, because if it is proved that the plaintiff is not the sole heir, and is only entitled to the possession of a certain share, then his suit will be decreed to that extent and his suit cannot be dismissed on the ground that he was entitled to a lesser share but stacked a claim to the whole of the property and such was the course adopted by a Division Bench of this Court in Regular Second Appeal No. 1284 of 1964 (Smt. Daya Kaur and others v. Jaswnat Singh and another RSA 1284 of 1964), decided on 28th February 1969. In that case, it was proved that the plaintiff was entitled to a half share and half share belonged to another person who was not a party to the suit. The Court decreed the suit to the extent of his share only. Ind Kaur, if she has a right in the property, can file a separate suit and claim her share on the basis of the said decree and it is not at all necessary that she should have been a party to the present suit, as her absence creates no difficulty in the adjudication of the matter, and the same, in my opinion, can be adjudicated wholly, properly and effectively between the present plaintiffs and defendants, without prejudice to anybody.

Mr. Jawanda then cited AIR 1941 16 (Federal Court) Surinder Kumar and Others Vs. Gian Chand and Others, Mathura Prasad Vs. Mohd. Umar Khan and Another, , Mst. Kalawati Vs. B. Ratan Chand, and Krishna Chandra Misra Vs. Sushila Mitra, to show that the appellate Court can take notice of the intervening change in law or the changed circumstances and decide the matter accordingly.

These authorities deal with the power of the Court to take notice of the supervening changes in law and facts at the appellate stage. There is no dispute with the proposition of law enunciated therein, but that is hardly relevant so far as the present case is concerned. In none of the abovesaid case, the appellate Court allowed any third party to be impleaded as a party to the case for the first time as a result of the concerned supervening changes in law.

I consider it further necessary to observe that even if a party, sought to be impleaded in a suit by the appellate Court is considered a necessary party, even then the appellate Court should not implead such a party if such a course is actuated by mala fide intention, especially so if that would necessitate a fresh trial. In the present case, the plaintiffs, who before the trial Court opposed the application of Ind Kaur tooth and nail, did not become suddenly generous towards Ind Kaur out of any sense of justice or love for Ind Kaur. They moved the application only to serve their own ends inasmuch as if Ind Kaur could be impleaded as a party to the suit, then that would have necessitated a fresh trial whereby they could kill two birds with one stone, in that they would have succeeded in eliminating the judgment and decree of the trial Court adverse to them and, secondly, could fill in the lacunae in their evidence discovered by the trial Court which led to the decision of the trial Court going against them. As regards Ind Kaur, I am of the view that she too moved the application before the appellate Court apparently on the instigation of the respondents before me, as she moved her application as late as four months after the respondents had done so without offering any explanation for that delay. Hence, the attempt of the plaintiff-appellants before the lower appellate Court to get Ind Kaur impleaded was clearly mala fide and the appellate Court, in my opinion, should not have allowed the application of the appellants, before him as also that of Ind Kaur, and should not have ordered the impleading of Ind Kaur as one of the plaintiffs to the suit, especially when it necessitated a fresh trial providing a fresh opportunity to the plaintiffs to fill in the lacuna in their evidence. Such impleading of a third person as a party to the suit at the appellate stage when it necessitates a fresh trial, has been frowned upon and disfavoured by their Lordships of the Privy Council in AIR 1931 229 (Privy Council) wherein it has been clearly ruled that even a necessary party should not be impleaded at the appellate stage if that necessitates a fresh trial. Hence, even a necessary party cannot claim to be impleaded as a party to the suit if that fact necessitates a fresh trial, but in the present case the plaintiff Ind Kaur, as already observed, is not even a necessary party and hence the provisions of Order 1, rule 10, Civil Procedure Code, are not attracted at all.

For the reasons stated above, I allow this appeal, set aside the order of the lower appellate Court under appeal and remand the case for decision of the appeal on merits. However, in the circumstances of this case, I make no order as to costs.