Satnam Singh alias Sattu vs Karam Singh

V.S. Aggarwal, J.

Karam Singh, respondent had filed a suit for possession of area measuring 1 Marlas 3 Sarsahis, situated in village Ajnoha, Tehsil Garhshankar. The claim of respondent No. 1 was that he is exclusive owner of the property in question. The appellant and other respondents Nos. 2 to 5 have, illegally and forcibly, taken possession of the site without any right, title or interest. The said suit had been contested by the appellant and by Harbhajan Singh and Amarjit Singh. In their written statement, they denied the locusstandi of respondent No. 1 to file the suit. Their contention was that the site in dispute does not form part of Khasra No. 477 and that respondent no. 1 is estopped from filing the suit by his own act and conduct. In the alternative, it was pointed out that even if it is proved that it forms part of the Khasra No. 477, even then, respondent No. 1 is not entitled to take possession of the same, because the property in question is in possession of Karam Singh through Satnam Singh, appellant.

The learned Civil Judge, Garhshankar framed the issues and after recording of the evidence held that the respondents have been recorded to be joint owners of Khasra No. 477. The property in question forms part of Khasra No. 477 and, therefore, respondent No. 1 at best could get a decree for joint possession. Aggrieved by the said judgement and decree of the learned trial court, respondent No. 1 preferred an appeal. It came up for hearing before the District Judge, Hoshiarpur. It appears that a settlement was arrived at between respondent No. 1 and Harbhajan Singh and Amarjit Singh. The appellant was not agreeable to the settlement. Learned counsel appearing for respondent No. 1 had made a statement by virtue of which, the appellant was deleted from array of the defendants. After taking into consideration, the compromise with respondents, the learned District Judge, Hoshiarpur allowed the appeal and decreed the suit for possession. Needless to say that the appellant had protested about his name being deleted from the array of defendants.

Learned counsel for the appellant urged that it was the appellant which was in possession of the property in question and, therefore, the suit for possession could not be decreed by deleting his name from the array of the defendants.

Order 1 Rule 10(2) of the Civil Procedure Code reads as under :

"10. Suit in name of wrong plaintiff :

. . . . . . . . . . . . . .

10(2) Court may strike out or add parties :

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 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."

A perusal of the aforesaid shows that the court can strike out or add parties at any stage of the proceedings. SubRule 2 of Rule 10 of Order 1 of the Code of Civil Procedure permits the court to do so. The power to strike off the name of any party improperly joined could be exercised even at the time of appeal. Such an order can be passed suo moto or on the application of the party. The question for determination is whether the party was improperly joined as a plaintiff or defendant. If the court concludes that the said party has been improperly joined, the name of the party can be struck out. The party interested in a litigation which has no relation with the relief or with the claim, is not a proper party in a litigation and the name of such a party can be struck out under Sub Rule 2 of Rule 10 of Order 1 of the Code of Civil Procedure.

What is the position here ? The learned District Judge has simply mentioned that since the name of the appellant had been deleted, the decree passed against Shri Harbhajan Singh will not be binding on the appellant. That, indeed, would only add to litigation. The appellant was arrayed as one of the respondents in the appeal before the District Judge and was a defendant in the civil suit filed by respondent No. 1. He along with Harbhajan Singh and others had filed a joint written statement; therefore, he had his interest in the property in question. Suddenly the striking out the name of the appellant and passing the decree against others is improper. The learned District Judge did not record any finding of fact that presence of the appellant is not necessary for determining the question in controversy. The attention of the court was drawn to the statement made by respondent No. 1 the plaintiff, particularly, his crossexamination, wherein he is stated to have told the court that appellant had constructed a house in the disputed area, which he might have constructed alongwith his father. In that view of the matter, it is obvious that appellant was a necessary party and merely at the behest of respondent No. 1 his name could not be deleted from the array of the defendants or as a respondent in the appeal. Not only it is unfair to the appellant, but also for proper adjudication of the controversy. At this stage, there is a reluctance to express further opinion for or against any party. But since a necessary party has been deleted without good reason, the judgment and decree, passed by the learned District Judge, Hoshiarpur cannot stand scrutiny.

For these reasons, the appeal is accepted. The judgment and the decree passed by the learned District Judge, Hoshiarpur, is set aside. The parties are directed to appear before the learned District Judge on February 26, 1998, who will proceed in accordance with law.